After Snowden: Regulating Technology-Aided Surveillance in the Digital Age

• Author: David D. Cole
• Position: Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law. I delivered a version of this essay at the John E. Sullivan Lecture at Capital University Law School in 2014. Parts of this essay are also developed and adapted from David Cole, Is Privacy Obsolete?, NATION (Apr. 6, 2015), http://www.thenation.com/article/privacy-20...
• Pages: 677-691

AFTER SNOWDEN: REGULATING TECHNOLOGY-AIDED

SURVEILLANCE IN THE DIGITAL AGE

DAVID D. COLE*

Imagine a state that compels its citizens to inform it at all times of

where they are, who they are with, what they are doing, who they are

talking to, how they spend their time and money, and even what they are

interested in. None of us would want to live there. Human rights groups

would condemn the state for denying the most basic elements of human

dignity and freedom. Student groups would call for boycotts to show

solidarity. We would pity the offending state’s citizens for their inability

to enjoy the rights and privileges we know to be essential to a liberal

democracy.

The reality, of course, is that this is our state—with one minor wrinkle.

The United States does not directly compel us to share all of the above

intimate information with it. Instead, it relies on private sector companies

to collect it all, and then it takes it from them at will.1 We “consent” to

share all of this private information with the companies that connect us to

the intensely hyperlinked world in which we now live through our smart

phones, tablets, and personal computers.2 Our cell phones constantly

apprise the phone company of where we are, as well as with whom we are

talking or texting.3 When we send emails, we share the addressing

information, subject line, and content with the internet service provider.4

When we search the web or read something online, we reveal our interests

Copyright © 2016, David D. Cole.

* Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law. I

delivered a version of this essay at the John E. Sullivan Lecture at Capital University Law

School in 2014. Parts of this essay are also developed and adapted from David Cole, Is

Privacy Obsolete?, NATION (Apr. 6, 2015), http://www.thenation.com/article/privacy-20-

surveillance-digital-age, and David Cole, Must Counterterr orism Cancel Democracy?, N.Y.

REV. BOOKS (Jan. 8, 2015), http://www.nybooks.com/articles/2015/01/08/must-

counterterrorism-cancel-democracy.

1 See, e.g., Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon

Customers Daily, GUARDIAN (June 6, 2013, 6:05 AM), http ://www.theguardian.com/world/

2013/jun/06/nsa-phone-records-verizon-court-order.

2 See Smith v. Maryland, 442 U.S. 735, 743–44 (1979).

3 See Barton Gellman & Ashkan Soltani, NSA Tracking Cellphone Locations

Worldwide, Snowden Documents Show, WASH. POST (Dec. 4, 2013),

https://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-

worldwide-snowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-

c6ca94801fac_story.html.

4 See, e.g., What Data Does Google Collect? , GOOGLE, https://privacy.google.com/data-

we-collect.html (last visited Mar. 27, 2016).